By Family Law Case Manager, Harry Low
In order to get a divorce in England or Wales, one person needs to issue divorce proceedings (the 'petitioner') and the other needs to acknowledge these proceedings (the 'respondent'). If the respondent fails to respond to the divorce papers, then the petitioner will need to take additional steps in order to get their divorce granted by the Court. We explain what these steps are.
What is the Acknowledgement of Service?
Once you have received your sealed divorce petition from the Court, a copy will have also been sent to your spouse, along with a document known as an acknowledgment of service. The acknowledgment of service is similar to a questionnaire, and will ask your spouse to confirm that they have received the petition and that they consent to a divorce being pronounced. The Court will require your spouse to complete and return the acknowledgement of service to allow you to move on to the next stage of the divorce, known as the Decree Nisi.
Is the Acknowledgement of Service Always Needed?
In the divorce petition, you will have stated the reason for the irretrievable breakdown of your marriage. This will need to be one of the following:
- Unreasonable behaviour
- 2 years' separation, with consent
- 5 years' separation
Depending on which reason you have stated, you may require explicit consent from your spouse to proceed. This will be the case if, for example, you are seeking a divorce on the basis of 2 years' separation with consent. If you have filed for divorce on this basis and your spouse does not respond to the Court, you will need to consider issuing a new application for divorce citing another reason, which doesn't require explicit consent from both parties.
If you have chosen a reason that doesn't require explicit consent, such as unreasonable behaviour, you will still need to satisfy the Court that the respondent has been made aware of the divorce proceedings. If they fail to return the acknowledgement of service, then this is where matters become more complicated, but you do have some options.
What to Do If Your Spouse Fails to Respond
If you have any correspondence from the respondent confirming that the documents have been received, such a text message or letter, then you may want to consider making an application for deemed service. Deemed service is an application to the Court asking for your divorce to proceed without the respondent's completed acknowledgement of service. This can only be done if the respondent has confirmed receipt of the documents by other means. It will be at the judge's discretion to award deemed service. If you are successful, the Court will proceed with your application for Decree Nisi without the acknowledgement of service.
If however your application is refused, or you do not have any other form of correspondence from the respondent, you will need to consider instructing a process server. A process server will physically serve the divorce papers to the respondent in person, either at their home, work, or another address they are known at. The process server would then provide you with a certificate of service which you will, in turn, provide to the Court as evidence that the respondent has been served the papers, and is aware of the proceedings. The Court may then allow you to proceed with your application for Decree Nisi if they are satisfied with this.
If neither of the above are successful, you will expected by the Court to continue with your attempts to notify your spouse of the divorce proceedings. This is known as alternative service. Alternative service is when you request permission to notify your spouse of the divorce proceedings using an alternative method. This could include serving notice on a relative of the respondent or their employer, or even by placing an advert in the paper which the respondent would be known to read.
If all of the above methods have been attempted, and service of papers has still been unsuccessful, your final resort will be an application to the Court for dispensed service. If awarded, you will be granted permission to proceed with your divorce application without the respondent's acknowledgment. The Court will only award dispensed service if they are satisfied that you've made all reasonable enquiries to find your ex-partner and serve them with the divorce papers. This means that ultimately, your spouse could be divorced without knowing it.